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Unfair Dismissal Decision Concerning “Existence of Dismissal (Reinstatement to Original Position · Letter of Reinstatement Waiver)” (Unfair Dismissal 90)
- Date2026/01/12 10:01
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‘Existence of Dismissal (Reinstatement to Original Position · Letter of Reinstatement Waiver)’ Unfair Dismissal Decision
[Case Information]
- Case name: Unfair dismissal decision concerning “existence of dismissal (reinstatement to original position · letter of reinstatement waiver)”
- Date of decision:
- Case number: Dismissed
- Decision-making body: Seoul Regional Labor Relations Commission 2025BuHae3278 ○ ○ ○ Application for Remedy for Unfair Dismissal
19 November 2025
- Summary of outcome: A.
1. Legal Implications
Ⅰ. Overview of the Case
In this case, the employee claimed that he/she had been unfairly dismissed and filed an application for remedy with the Labor Relations Commission, while the employer argued that there had been no dismissal and that the employment relationship had instead ended due to the employee’s voluntary waiver of reinstatement and consequent termination of employment. The case was heard before the Seoul Regional Labor Relations Commission.
During the proceedings, the key factual issues included: the unity of the business establishments of Employers 1 and 2, the number of regularly employed workers, and the circumstances surrounding the order of reinstatement to the original position, the subsequent submission of a letter of reinstatement waiver, and the receipt of an amount equivalent to wages and severance pay. Ultimately, the application for remedy for unfair dismissal was dismissed. This decision is a useful precedent for reference when advising on similar cases at Labor Law Firm Law&.
In this case, another issue was whether the prior finding—made in the initial remedy application and the Central Labor Relations Commission’s decision—that the two companies constituted a single business establishment could continue to be maintained.
Ⅱ. Issues in Dispute
The issues in this case were:
“① Whether, despite being formally separate corporations/sole proprietorships, they together constitute a single ‘business establishment’ with standing as an employer; and ② Whether, in circumstances where, after an order of reinstatement to the original position, the employee submitted a letter of reinstatement waiver and received an amount equivalent to wages and severance pay, it can still be said that a dismissal exists.”
Ultimately, the key question was whether the cause of termination of the employment relationship lay in a unilateral intention of the employer (dismissal), or whether it was closer to the employee’s refusal to be reinstated/termination by mutual agreement, and thus whether there was any interest in seeking a remedy for unfair dismissal.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case found that the employer’s management, accounting, and business operations were not substantively separated, that the same management entity existed, and that the employee had worked in the same space as the personnel of both employer entities. It also noted that, in the initial remedy application and the Central Labor Relations Commission’s re-examination, the two companies had already been recognized as a single business establishment, and that it was difficult to see that the substantive business circumstances had changed thereafter. In light of these factors, the panel held that both companies constituted a single business establishment with employer standing.
The panel further found that, after receiving an order of reinstatement to the original position, the employee submitted a handwritten statement setting out the reasons for waiving reinstatement; that the employer paid not a dismissal settlement but an “amount equivalent to wages” and, for employees with at least one year of service, also settled severance pay; that, although the employee later claimed to have “mistakenly believed that reinstatement would still be possible even after waiving reinstatement,” there was no indication that the employee had actually attempted or contested reinstatement; and that it was difficult to accept that the employee was unaware of the structure under which one could choose between reinstatement to the original position and waiver of reinstatement, as some colleagues chose reinstatement and others chose to waive it. Taking all of this into account, the panel held that the termination of the employment relationship should be viewed not as a unilateral dismissal by the employer, but as the employee’s waiver of reinstatement and the resulting settlement.
The panel held that, in the absence of a substantive dismissal, the disposition at issue could not be regarded as an unfair dismissal.
Ⅳ. Practical Points (From the Employee’s Perspective)
Where an employee, having received an order of reinstatement to the original position, signs a letter of reinstatement waiver and receives an amount equivalent to wages and severance pay, it may become very difficult thereafter to assert that a dismissal occurred. When faced with a choice between waiving reinstatement and agreeing to a consensual termination, the employee should carefully review the contents of the documents, the nature of the amounts to be paid (whether they are dismissal consolation payments or settlement of an amount equivalent to wages and severance pay), and the prospects for future applications for remedy. If necessary, the employee should express his or her intention only after careful consideration and consultation with experts such as Labor Law Firm Law&.
It is also not sufficient merely to have a subjective belief that “I thought it was a dismissal.” It is very important, for later stages before the Labor Relations Commission or the courts, to preserve objective circumstances such as whether there was an actual notice of dismissal and whether there were any attempts or efforts to seek reinstatement or to contest the employer’s actions.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s perspective, when restructuring employment relationships due to business needs, relying solely on obtaining letters of reinstatement waiver or resignation letters in order to avoid a formal dismissal carries a high risk that the employee will later argue that “in substance, it was a dismissal.” Accordingly, the employer should clearly document, in writing and through proper procedures, the circumstances surrounding the reinstatement order, the employee’s voluntary waiver of reinstatement, and the settlement of an amount equivalent to wages and severance pay.
In particular, in cases such as this one involving multiple corporations/business operators, the actual circumstances of direction and supervision, wage payment, and operation of accounting and HR may lead to a finding that there is a single business establishment. Therefore, it is necessary to review in advance HR and dismissal strategies premised on the scope of application of the Labor Standards Act (whether there are five or more regularly employed workers).
In addition, the employer should clearly explain to employees the information and options available to those who choose reinstatement and those who waive reinstatement, and should keep explanatory materials and interview records so that there is no room for coercion or misunderstanding in the decision-making process. Doing so will enhance the employer’s ability to defend against future unfair dismissal disputes.
2. Matters Decided
A. Overview of the Case and Progress of the Proceedings
a. Whether employer standing exists
Employer 1 argued that it was a business establishment with fewer than five employees, and Employer 2 argued that it had no employer standing. However, in the initial remedy application case, the two were found to constitute a single business establishment, and that finding was maintained in the Central Labor Relations Commission case. Considering that management, accounting, and business operations had not changed since the Central Labor Relations Commission’s decision, the two companies were found to constitute the same business establishment.
b. Whether a dismissal exists
① The employee submitted a handwritten statement of reasons for waiving reinstatement in response to the order of reinstatement to the original position; ② the employer paid an amount equivalent to wages and, for employees with at least one year of service, also paid severance pay; ③ although the employee claimed to have mistakenly believed, even after submitting the statement of reinstatement waiver and receiving the amount equivalent to wages, that reinstatement to the original position would still be possible, there was no indication of any efforts made toward such reinstatement; and ④ it is difficult to accept that the employee was unaware that he or she could choose between reinstatement to the original position and waiver of reinstatement, given that some employees chose reinstatement and others chose to waive it. Taking all of this into account, the panel held that no dismissal existed.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
a. Whether employer standing exists
Employer 1 argued that it was a business establishment with fewer than five employees, and Employer 2 argued that it had no employer standing. However, in the initial remedy application case, the two were found to constitute a single business establishment, and that finding was maintained in the Central Labor Relations Commission case. Considering that management, accounting, and business operations had not changed since the Central Labor Relations Commission’s decision, the two companies were found to constitute the same business establishment.
b. Whether a dismissal exists
① The employee submitted a handwritten statement of reasons for waiving reinstatement in response to the order of reinstatement to the original position; ② the employer paid an amount equivalent to wages and, for employees with at least one year of service, also paid severance pay; ③ although the employee claimed to have mistakenly believed, even after submitting the statement of reinstatement waiver and receiving the amount equivalent to wages, that reinstatement to the original position would still be possible, there was no indication of any efforts made toward such reinstatement; and ④ it is difficult to accept that the employee was unaware that he or she could choose between reinstatement to the original position and waiver of reinstatement, given that some employees chose reinstatement and others chose to waive it. Taking all of this into account, the panel held that no dismissal existed. /
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning Expression of Intention to Resign (Resignation Remark in Telephone Call)”
- “Unfair Dismissal Decision Concerning Grounds for Refusal to Renew (Fixed-Term Elderly Building Manager)”
- “Unfair Dismissal Decision Concerning Dismissal of Application (Non-Appearance at Hearing)” – Date of decision: – Case number: Dismissed
[Tags]
Unfair dismissal, existence of dismissal (reinstatement to original position · letter of reinstatement waiver), others, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is one in the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision Concerning Grounds for Refusal to Renew (Fixed-Term Elderly Building Manager),” in a new window.
※ The list of decisions related to existence of dismissal (reinstatement to original position · letter of reinstatement waiver) can be viewed together under “List of Decisions Related to Existence of Dismissal (Reinstatement to Original Position · Letter of Reinstatement Waiver).”
※ Korean version of this case: Korean article
[Case Information]
- Case name: Unfair dismissal decision concerning “existence of dismissal (reinstatement to original position · letter of reinstatement waiver)”
- Date of decision:
- Case number: Dismissed
- Decision-making body: Seoul Regional Labor Relations Commission 2025BuHae3278 ○ ○ ○ Application for Remedy for Unfair Dismissal
19 November 2025
- Summary of outcome: A.
1. Legal Implications
Ⅰ. Overview of the Case
In this case, the employee claimed that he/she had been unfairly dismissed and filed an application for remedy with the Labor Relations Commission, while the employer argued that there had been no dismissal and that the employment relationship had instead ended due to the employee’s voluntary waiver of reinstatement and consequent termination of employment. The case was heard before the Seoul Regional Labor Relations Commission.
During the proceedings, the key factual issues included: the unity of the business establishments of Employers 1 and 2, the number of regularly employed workers, and the circumstances surrounding the order of reinstatement to the original position, the subsequent submission of a letter of reinstatement waiver, and the receipt of an amount equivalent to wages and severance pay. Ultimately, the application for remedy for unfair dismissal was dismissed. This decision is a useful precedent for reference when advising on similar cases at Labor Law Firm Law&.
In this case, another issue was whether the prior finding—made in the initial remedy application and the Central Labor Relations Commission’s decision—that the two companies constituted a single business establishment could continue to be maintained.
Ⅱ. Issues in Dispute
The issues in this case were:
“① Whether, despite being formally separate corporations/sole proprietorships, they together constitute a single ‘business establishment’ with standing as an employer; and ② Whether, in circumstances where, after an order of reinstatement to the original position, the employee submitted a letter of reinstatement waiver and received an amount equivalent to wages and severance pay, it can still be said that a dismissal exists.”
Ultimately, the key question was whether the cause of termination of the employment relationship lay in a unilateral intention of the employer (dismissal), or whether it was closer to the employee’s refusal to be reinstated/termination by mutual agreement, and thus whether there was any interest in seeking a remedy for unfair dismissal.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case found that the employer’s management, accounting, and business operations were not substantively separated, that the same management entity existed, and that the employee had worked in the same space as the personnel of both employer entities. It also noted that, in the initial remedy application and the Central Labor Relations Commission’s re-examination, the two companies had already been recognized as a single business establishment, and that it was difficult to see that the substantive business circumstances had changed thereafter. In light of these factors, the panel held that both companies constituted a single business establishment with employer standing.
The panel further found that, after receiving an order of reinstatement to the original position, the employee submitted a handwritten statement setting out the reasons for waiving reinstatement; that the employer paid not a dismissal settlement but an “amount equivalent to wages” and, for employees with at least one year of service, also settled severance pay; that, although the employee later claimed to have “mistakenly believed that reinstatement would still be possible even after waiving reinstatement,” there was no indication that the employee had actually attempted or contested reinstatement; and that it was difficult to accept that the employee was unaware of the structure under which one could choose between reinstatement to the original position and waiver of reinstatement, as some colleagues chose reinstatement and others chose to waive it. Taking all of this into account, the panel held that the termination of the employment relationship should be viewed not as a unilateral dismissal by the employer, but as the employee’s waiver of reinstatement and the resulting settlement.
The panel held that, in the absence of a substantive dismissal, the disposition at issue could not be regarded as an unfair dismissal.
Ⅳ. Practical Points (From the Employee’s Perspective)
Where an employee, having received an order of reinstatement to the original position, signs a letter of reinstatement waiver and receives an amount equivalent to wages and severance pay, it may become very difficult thereafter to assert that a dismissal occurred. When faced with a choice between waiving reinstatement and agreeing to a consensual termination, the employee should carefully review the contents of the documents, the nature of the amounts to be paid (whether they are dismissal consolation payments or settlement of an amount equivalent to wages and severance pay), and the prospects for future applications for remedy. If necessary, the employee should express his or her intention only after careful consideration and consultation with experts such as Labor Law Firm Law&.
It is also not sufficient merely to have a subjective belief that “I thought it was a dismissal.” It is very important, for later stages before the Labor Relations Commission or the courts, to preserve objective circumstances such as whether there was an actual notice of dismissal and whether there were any attempts or efforts to seek reinstatement or to contest the employer’s actions.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s perspective, when restructuring employment relationships due to business needs, relying solely on obtaining letters of reinstatement waiver or resignation letters in order to avoid a formal dismissal carries a high risk that the employee will later argue that “in substance, it was a dismissal.” Accordingly, the employer should clearly document, in writing and through proper procedures, the circumstances surrounding the reinstatement order, the employee’s voluntary waiver of reinstatement, and the settlement of an amount equivalent to wages and severance pay.
In particular, in cases such as this one involving multiple corporations/business operators, the actual circumstances of direction and supervision, wage payment, and operation of accounting and HR may lead to a finding that there is a single business establishment. Therefore, it is necessary to review in advance HR and dismissal strategies premised on the scope of application of the Labor Standards Act (whether there are five or more regularly employed workers).
In addition, the employer should clearly explain to employees the information and options available to those who choose reinstatement and those who waive reinstatement, and should keep explanatory materials and interview records so that there is no room for coercion or misunderstanding in the decision-making process. Doing so will enhance the employer’s ability to defend against future unfair dismissal disputes.
2. Matters Decided
A. Overview of the Case and Progress of the Proceedings
a. Whether employer standing exists
Employer 1 argued that it was a business establishment with fewer than five employees, and Employer 2 argued that it had no employer standing. However, in the initial remedy application case, the two were found to constitute a single business establishment, and that finding was maintained in the Central Labor Relations Commission case. Considering that management, accounting, and business operations had not changed since the Central Labor Relations Commission’s decision, the two companies were found to constitute the same business establishment.
b. Whether a dismissal exists
① The employee submitted a handwritten statement of reasons for waiving reinstatement in response to the order of reinstatement to the original position; ② the employer paid an amount equivalent to wages and, for employees with at least one year of service, also paid severance pay; ③ although the employee claimed to have mistakenly believed, even after submitting the statement of reinstatement waiver and receiving the amount equivalent to wages, that reinstatement to the original position would still be possible, there was no indication of any efforts made toward such reinstatement; and ④ it is difficult to accept that the employee was unaware that he or she could choose between reinstatement to the original position and waiver of reinstatement, given that some employees chose reinstatement and others chose to waive it. Taking all of this into account, the panel held that no dismissal existed.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
a. Whether employer standing exists
Employer 1 argued that it was a business establishment with fewer than five employees, and Employer 2 argued that it had no employer standing. However, in the initial remedy application case, the two were found to constitute a single business establishment, and that finding was maintained in the Central Labor Relations Commission case. Considering that management, accounting, and business operations had not changed since the Central Labor Relations Commission’s decision, the two companies were found to constitute the same business establishment.
b. Whether a dismissal exists
① The employee submitted a handwritten statement of reasons for waiving reinstatement in response to the order of reinstatement to the original position; ② the employer paid an amount equivalent to wages and, for employees with at least one year of service, also paid severance pay; ③ although the employee claimed to have mistakenly believed, even after submitting the statement of reinstatement waiver and receiving the amount equivalent to wages, that reinstatement to the original position would still be possible, there was no indication of any efforts made toward such reinstatement; and ④ it is difficult to accept that the employee was unaware that he or she could choose between reinstatement to the original position and waiver of reinstatement, given that some employees chose reinstatement and others chose to waive it. Taking all of this into account, the panel held that no dismissal existed. /
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning Expression of Intention to Resign (Resignation Remark in Telephone Call)”
- “Unfair Dismissal Decision Concerning Grounds for Refusal to Renew (Fixed-Term Elderly Building Manager)”
- “Unfair Dismissal Decision Concerning Dismissal of Application (Non-Appearance at Hearing)” – Date of decision: – Case number: Dismissed
[Tags]
Unfair dismissal, existence of dismissal (reinstatement to original position · letter of reinstatement waiver), others, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is one in the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision Concerning Grounds for Refusal to Renew (Fixed-Term Elderly Building Manager),” in a new window.
※ The list of decisions related to existence of dismissal (reinstatement to original position · letter of reinstatement waiver) can be viewed together under “List of Decisions Related to Existence of Dismissal (Reinstatement to Original Position · Letter of Reinstatement Waiver).”
※ Korean version of this case: Korean article
